#### THE SCHOONER ADELINE AND CARGO.

*Absént....Tom), J*

.... •fured may be payment of salvage, ai-. thoughUie *245bel prays c'ondemnanon of it as p>\ze of war, ami does nut olai.;¡ salvage. Salvage • is an incident: to E ,e question of prize.

*244THIS, was ap appeal from the sentence ofthe Cír-. cu*t Gourt for the district of New York;

The American letter, of marque, schooner Adexine; sailed from Bourdeauxr for the United States with a car-owned in part by citizens of the United States, and *245ift part by French subjects. On the ,14th of March, 1814, she was .captured, in. the bay of Biscay, by a British -squadron, who put a pnze crew on board and, ordered her for Gibraltar. After being six days in the possession of the British she was re captured, near Gibralter, by the American privateer *Expedition,*who put a crew onboard an- ordered her for the United States where she arrived and was .'libelled, -with her cargo, by the re-captors, in the district Court atlSesv York, as prize of war.' The vessel Was claimed by citizens of the Uni, ted States residing therein, as was also part of her cargó.

*A*test aitidutit ought-to' state that the property at the time of shipment,' arid also at • the time of capture, did belong, and will, if restor-. ed, belong to the Claimant^ but an irre'gulaiity in this ■respect is not fatal.

A test affidavit by an agent, iSnotsuffcitnt,' if the pr incipal be within the country, and within "a reasonable distance from the Court. But if test affidavits, liable to such objections, . have been acquiesced ill by the parties in the Courts below, the objections will not prevail in this Court. By the act of the 3d of March, 1800, one sixth part only is allowed to a privateer lor salvage upon the re-capture ol" the cargo on *246board apnvaie disunited States, atJmifte allowed for die recapture of the •

*245Another part of the cargo was claimed by French subjects residenf in the United States. Another part by French subjects, resident in France. Another pstrt by citizens of the United States, resident in France, Another part by French subjects whose, residence was not stated, and another part, by'citizens of^the United States, .wlx'se residence was not stated,' and another part by “ *alien friends”*without stating of what nation, or where resident. Some of the claims stated the pro perty, at the time of *capture*to belong to the persons therein mentioned, and did not state to whom it belonged at the time of *shipment.*

*•*The district Court condemned, as good prize, all th,e property owned by Frenchmen and other persons resi ■ dent- m France, and all the property of those persons whose residence was not ‘stated; and -restored all tlie property belonging to persons resident irt the United States, upon payment of *one sixth.*Tar salvage. The vessel was restored, by consent of parties, on payment of *one half*for salvage. The sentence was affirmed *pro forma,*by consent, in the Circuit Court.

The re-captors appealed as to the rate of salvage, which they contended ought to have been *one half,*and those Claimants, whose property was condemned, also -appealed.

The case was submitted to. the Court by J. Wood-warm, and Emmet, *for the re-captors,*and by Irving, and D. B. Ogden, *for the. Claimant»,*upon their written notes for argument.

*246The property nfpersons, do-Trance,"(whetter they bo Americans, Frenchmen or foreigners) is ^T^ótarSi -f icr°beinge24 hours in possession of tlie enemy, that being the rnie adopted m the French tribu¡nais. 1

Further proof iytifedmrtf ■where ite nato"an'dpro-0" prietary inter-,C!’.^’1)Sur'1(ido appear. «lsdinfed win * h.e decreed as

J. Woodward, *for ¿he*rc-captors, made the following points:

That such claims as date the property from the time of capture, instead of the time of shipment, are insufficient and invalid.

That the re-captors are entitled, to the whole of the French property, by the rule of reciprocity.

3. That the captors are entitled to a rate of salvage 0f one half qpon the American property, or such other arul higher rate than the rate decreed in the Courts below, as this Court may adjudge.

, , .... , , ,¶ T «*. That the rc-captors are entitled, by the same rule lvc*Pro’city, to the whole of the property of such Atnericans as were at the time pf capture domiciled in France, or resident there for commercial purposes.

' > . . • - 5. That the re-captors aré likewise entitled to ail proper(;V yic national character of which is not defined by * * ^ *J-*the evidence.

6- Tiial the property, of those Frenchmen who are described as having amere temporary residence in the United State.s, cannot be considered as American.

That the property of persons described, as alien without mentioning to what nation they belong or where they reside, mus' also be taken to be French, or decreed to the captors for uncertainty.

8. That the persons described in the claims as citizens.ofthe United States, without stating their residence at the time of shipment, or at any other time, must, under the circumstances’ of the case, be considered as re-, siding in France.

Thére are claims which date the property from the time of capture. This we say is insufficient. The claims should state the property from the time of *shipment*at least. This - necessary to prevent transfer *in transitu,*and to give effect to, and preserve the simplicity and dispatch of the *preparatorio*investigation.

*247An important question in this case is, what is to be-conic of the American part of the cargo of an armed American vessel, re-captured by an American private armed vessel,?

The re-captors' in the first place contend that the part of the cargo above mentioned is *casus*omissus as to the act of congress of the *3d of March,*1800.

If the Court should decide that there is á *casus bmis-sus*then the fate of this part of the cargo will depend upon the *common law.*

The re-captors contend that the common law is that if property so situated has remained twenty-four houj»in possession of the enemy, of the captured party, they , are entitled to the whole of the property as prize of war. To this they cite *Grotius de jure belli ac pads, lib. 3, ch.*16. *Vattel book '3, ch. 13,*§ 196. This right upon recapture is here clearly, laid down to *privateers*to be divested only by the laws of each state and treaties. Our treaty with France is silent except as to restoration on Capture by pirates; this being *ex delicto*there is no change of property by the original capture. See also professor Marten’s summary of the law- of nations, book VIII, ch. 3, § 10. *“*In order to encourage, privateering «those concerned in it are allowed to hold all the mer- « chant vessels and merchandize they take from the « enemy or his subjects without any reserve whatsoever « with respect to the redemption of them. by the pro- - *“*prietor.”

The only remaining question on this point would, be what kind of possession consummates the right-of the privateer. Twenty-four hours possession has been considered *“firm”*possession, and sufficient to consummate this right by an alrnost common usage, and. recognized by almost all the treaties of maritime powers. 1 *Rob.*151, *Jlmer. ed.*2 *Jlzuni,*306, 308,. 312, *in a note*275,-276# *and*282.

.. If the above considerations are inapplicable and the salvage of this part of the cargo is governed by the acts of congress, then by those acts, the re-captors are enti tied to one half.

*248The unqualified right of the privateer to the property captured, or re-captured, is, after firui possession,-clear at *CQmmon'latv,*and the doctrine of taking away that by salvage is derogatory to. that law. If thin be-so, the act of congress is derogatory to the common law, and must be *liberally construed in favo? of*privateers.,

The reward has always been out of the whole subject matter; the cargo as well as vessel and armament; and it is with confidence contended that a separation of the cargo so as to subject it to *one sixth*salvage, while the vessel and arihancnt affords one half, is, if.it exist at all, anomalous to the act of the- *3d of March,*1800, and at war with the usage and treaties of all maritime states.

The reason of encreasing the salvage- upon an armed vessel is the merit of battle, and it is evident that the cargo is as well won by battle as the armament and vessel..

( if thé .whole of the act of congress be-to be taken together, and the 2d section be permitted to reflect alight upon the 1st section, it will appear that congress could have had no other, meaning than that the 'salvage should belfioreosed upon the cargo as well as the vessel and armament. In'the .second section, where'they give a salvage upon their owft property thus captured by a private armed vessel, they-give *one half of the goods on board*as well as of the vessel and armament.

But should not the cargo be considered as a mere *in-, cident*to the vessel ami follow its fate and character ?'

As lo the French property we are .entitled to the whole as prize of war by. the foregoing rule of twenty- . four hours possession which is the rule'in France. • Reciprocity is the rule in this case. ’ *See the act of*1800, *■ section 3.*

The twenty-four hour rule is established in France by ordinance of 15th June, 1779, with respect to all re-captures by privateers. Franee, in her treaty with Holland, -1st" May, 1-781, secures the twenty-four hour right to privateers. The Court will find.those acts of France referred to *in-2.Muni,*276 qnd 282. *2 Dallas, 2, Mil**249*ier et. al, v. ship Resolution.*This is a strong' case establishing the twenty-four hour right. It refers to an ordinance of congress declaring this rule as to us, and refers to the French ordinance to the same point. It admits the twenty-four hour rule, but excludes its application to that cáse, that being the case of a neutral capture w hich conveyed no right. See also the case of the *Mary*Ford,, *S Sail.*188, *M’Sonough v. Sannery..*

On the right of the re-captors on the 4th point of the case they will not enlarge by argument, as they consider it well established; nor on that of the 5th point than merely to observe that it appears to be just, *ex necessi*tate, and-comes under the description of *confusion*in.the civil law; nor as to the 6th point than to observe that .there is no standard by which a character can be reflected Upon these Claimants but the *voyage itself ■;*which makes them either American or French. The description of the claim negatives the idea of their being American *;*they must, of course, be French. The 7th point must meet the same construction for the same reason.

As to the principle contended for in the 8th point of the case, it may be remarked, for elucidation, that, some of the Claimants, desci ibed as in this point, turn out, by the evidence, to be *resident*in France for commercial purposes.

Is the owner of the vessel entitled to freight exclusive of salvage?

The re-raplors say the vessel is not entitled to freight because she would have been condemned had she been, brought into England. But if entitled to freight, the captors have *saved*that freight, and are therefore entitled to one half as salvage.' Freight may remain, after all the rights of the captors are deducted, to be adjusted between the vessel and the freighters.

This question can only apply to the American part of the cargo *;*for as to the Frencli, the rule is to vest the property *absolutely*in cases, of re-capture after twenty-four hours possession: the *postliminii*right and all its incidents are destroyed.

*250•. Irving, *in behalf of the owners of the vessel, and of such’parts of the cargo as were claimed by persons'resident in the United States.*

The schooner Adeline is a registered American vessel owned by IsáaC Levis and William Weaver, native citizens of the United States, and residents of Philadelphia, and was commissioned as an American letter of marque. She commenced her voyage from Bordeaux, to a port in the United States, in tile month of March, 1814, having on board a cargo owned principally by; citizens of the United States and others residing in our territory. In the course of this voyage, she was first captured by two British vessels of war, and was afterwards, and before her condemnation as prize, re-captured by an . American private armed vessel. .Upon her first capture, most of her papers were taken from on board by the captors, and those which were left have been delivered up to the district' Court at New York, and transcripts of the same are Contained in the record before this Court.

In these cases most of tile claims and test affidavits spicify the property respectively claimed, at the time of shipment in the Adeline, and at the time of capture, to have been owned by citizens and residents in the United States.

Many of the claims and test affidavits testify that the goods Urns churned vested in the Claimants before and at tifie timé of capture and re-capture.; and generally" all the claims are supported b_> the respective bills of lading. In truth there is not a paper attached to this record which falsifies any claim or casts any suspicion upon them. An objection has been taken to some of those claims, because they do not state that the property vested in the Claimants at the time of shipment, and that, for aught that appears to this Court, the property might have been transferred *in transitu.*

Admitting this to be the fact, how can such transfer prejudice those Claimants ? The vessel was an AmerL, can vessel coming from a *French port*to a port of the United States.

The rule, that the character of property must he de-. *251tormined by its shipment, that the same cannot bé transferred in its transit, but, as respects belligerent rights, must, be considered as remaining the same as at the time of shipment, applies only to *enemy property. Danckebaar dfiicaan,*1 *Rob.*90. *diner. Edit.*— the *Vrow Margaretha,*1 *Rob.*285, *dmer. Edition.*

But the claims objected to will be found, on examination, to agree with those which are in common use in the admiralty Courts of England, even in cases where the property is captured as prize of war. *The*Fortuna, 2 *Rob. in the appendix,*3Í3. It is sufficient to assert property in the Claimants and to negative the all- gation of title in the enemy at the time of capture. , Those claims and test affidavits sire testimony in a prize cause, and will be deemed satisfactory, unless there.is some evidence in the ship’s papers or preparatory examinations to in-; validate them'. *See .the duke of Newcastle’s letter in the appendix to (thitty. 6 Rob.*55, *the Haabet.*

But to proceed to the merits of this case. Upon examining the libel of the captors, the first enquiry w ili be, Whether this property *could be captured as prize,*for it has been so libelled.

The commission to our private armed vessels, under the act declaring war, authorizes the re-taking of property captured which was originally American. The property thusre-taken can only present a case of salvage, because the- title of the original proprietors never has been divested ; and that equally whether the property was originally American or neutral.

The interest of the captured property does not vest in the captor until after final adjudication. 5 *Rob.*167, *dm. Edit, the Elsebe*— 4, *sect, prize act,*11 *th vnl. United States laws.*And the fifth section of the prize act provides, “ that all vessels, goods and effects the property of any citizen’of the United States, or of persons within and under the protection of the United States, or of persons permanently residentwitjnn and under the protection of any foreign prince, government s* state in amity with tlie U. States, which have befen captured bythfe enemy .and which have been re-captured by vessels Commissioned as aforesaid, shall be restored to the rightful owners, upon *252payment by them respectively of a just, and reasonable’ salvage, to be determined by the mutual Agreement of the parties concerned, or by the decree of any Court having competent jurisdiction, according to the natux*e of each case, agreeably to the provisions heretofore established by law.”

The present case, then, before the Coúrt determines itself to be a case of salvage, if there was a right to recapture,-and if the service rendered was meritorious. The rigid is lint questioned, fori the re-capture was from the *énémy;*nor is the service questioned, for the property would have been otherwise lost.

It becomes however a matter of enquiry, whether the re-captors under their present libel can have a decree for salvage. The papers taken from on board the vessel and the examinanoris *in preparatorio*proved that the recaptured vess^i was an American vessel, and that her cargo was in part'American and in part French. ,It was evident, therefore, that the re-capture efeuld only present a cáse, of salvage; and as such the vessel and cargo should haVe been libelled. But tfie libellants have proceeded against the property as *pri%e of war,*and have asserted title to it as such.in all their allegations. Must théy not make out those allegations, and, if theyfail, can they,,as a last resort, seek for salvage, when such has not been prayed for in their libel, nor in any manner spread upon the record before this Court ?

But if the Court should be of opinion that a decree for salvage can be made upon the libel, claiths and disclosures in this record, then the only question will’be the. amount of this salvage. The re-c'aptors contend for a *moiety,*and we, that they should Have but a *sixth.*Which is right must depend upon a just construction of the act in cases of re-1 apture. passed *3d March,*1800, 5 *voí. UÍ 4States*laws, £8 — 1 *Graydon,*418.

The first branch of the first section nf this act provides that “ a re-raptured vessel,-other than a vessel of war or private armed vessel, shall be restored, on payinent’of one.eighth, (if taken by a public armed vessel,) of .the válue. oí'.the re-cáptured vessel and cargo; and if re-taken by a private armed vessel, of one sixth.”

*253The second branch of that section provides «that if the re-captured vessel shall appear to have been set forth and armed as a vessel of war before such.capture, or afterwards and before there-taking, the salvage shall be one moiety of the true value of such vessel of war or privateer.”

The act contemplates two descriptions of hasps as to vessels, viz. armed and unarmed ; the former are to pay a moiety, thp latter a Sixth. The law having settled the amount the Court when it ascertains whát the law is, will adhere to the provision. Now the construction must depend on the evident meaning and intent of the legisla-' ture, as dearly to he gathered from a view of the whole provision; and.it may be. adopted as a fundamental rule,, that where there is an express provision, -there shall not be a provision by implication * *expressiq unius est 'exdusio alterius**

The first clause provides for the case of unarmed yes* seis and goods. It commences by stating «that when « any vessel unarmed, *or*when any goods,” (not on board stich vesse), but wholly.in the disjunctive,) when flap, goods (reaching any and every case of goods) whpn any .such are captured by a private arme.d vessel, one sixth shall be allowed. It proceeds throughout the whole clause in tiie disjunctive', saying that .such vessel *or goods*..shall be restored on payment of one sixth as salvage.

The second clause is studiously confined to Vessels* « and if *such vesseV’*(passing by goods altogether and leaving the general provision for goods unimpaired,) and if *such vessel*is armed, then one moiety of the true value, of *such vessel*is to be allowed ; repeating and carefully confining the provision to thermei, and that, top, with r - peculiar particularity. Congress, in express .words distinguish; they place private unarmed vessels and all goods re*captured on the same footing,

■ The fifth section of the prize act, *laws of the United*States, *voL*11, p. 24<0, § 5, declares that the above provisions are to regulate eases of salvage. .

But it is contended that the *intent*of a statute is *to*be *254considered, that the *design*of the legislature is to be cotísuited. I grant it, wherevér there is any ambiguity in a statute. In such case it is the privilege and ’duty of the Court to. give a just construction. But this'only holds in cases where there is great obscurity, not in cases where the provisions of the statute are clear and’explicit. To hold that a Court can intermeddle with such provisions is to, clothe the Court with legislative as well as judicial powers — to authorize it to make laws instead of only expounding them.

. .. It .is laid down in *Parker.*233, that where the words ofa statute are express, plain and clear, they ought to be construed according to the genuine and natural signification and import, unless by such exposition a construction or inconsistency would arise in the statute by reason of some'subsequent, clause from whence it might be in'ferred that the intent of parliament was otherwisé.”'

But,it is said, that from the" provision contained in the second! section-of the statute we may gather, that it was theintent of the legislature to give a moiety of the goods on board a private armed vessel to the re-captor, "as well as si. moiety of the vessel! r When we come to examine tbil, section.* which is thus pressed into the service of the Apt, w e shall find that it relates] entirely to the property bf the *United States■*which may be re-captured. It lias' no- reference Jo the first, section, it speaks of property of a different description, differently owned. Ini the last clause it provides, that if a vessel of war of the United State's is recaptured by a private armed vessel, a moiety of any!goods on,board shall be allowed. The government,'deeply interested in the preservation Of our *public Vessels;*the national character, deeply interested in the rescuing from the enemy our vessels of War and in not permitting them tl> exist as mementos of their triumph *;*the national prosperity, deeply interested in preserving to us the means of our own strength and in preventing the same from being added to that Of the enemy *i*these are sufficient inducements for our government to make .an extraordinary provision. The service is riot rendered to an individual, it is rendered to the nation; it is more *meritorious;*feelings of patriotism more than of interest may have impelled to the. performance of the *255duty ; the danger was1 greater, the object ihore important; the recompense should therefore be encreased.

But the first and second sections of this-statute • wholly independent. The first relates to the re-capture by our public on private ai med ates tQ the re-capture of *public property*pither by our public or private armed vessels. Each section is perfect in itself, and each independent of the *other;*neither requires the interposition of any Court to explain them. . of *private property*either vessels; The second, rel

Whereyer. any words of a statute are. obscure or doubtful, the intention of the.legislature is tobe resorted to in order4o find the. meaning of, the words.” *Ploioden*57, *Wímbish v.*Tailbois.

Where words, of a statute are plain and positive, it is not the province of the Court to search after new constructions.

Justice Buffer remarks in the case of *Bradley*<§* ano-r' *t\ier v. Clark, 3 T. E.*201. that, with regard to the construction of statutes according to the intention of the legislature, we must remember, that there is an essential difference between the expounding of modérn and ancient. acts of parliament. In early times the legislature used *to*pass laws in general and in few terms j they were left to the Courts of law to be construed, so as to reach all the cases within the misphief to be remedied.. Rut-in modern times, great care has been taken to mention the particular casps injthe contemplation of the legislature, and therefore the Courts áre not permitted to take the game liberty in construing them as they did in expounding the ancient statutes.”

But the provisions in this statute respécting salvage were not unadvised provisions hurried over without deliberation. Congress, in consequence of the partial virar with France, had been called on to legislate repeatedly upon the subject.

The. first provision was by statute *28th June,*1798, 4 *’ool. United States laws, p.*154, sect. 2d. This is geh*256eral for vessel and cargo, armed or unarmed, one eighth/ all are placed on the same footing. .

The seeond provision .was by statute of!March 2d» 4799, *Mh vol. United, States laws, p.*472. That gives,(if detained. 24 hours,) one. eighth *•,*if 48 ours, one fifth / if 96.hours, one half jf without any distinction between Vessel and. goods, or armed ami unarmed.

, The next year, induced by the inconvenience or inequality of the foKtner laws, they made a deliberate provision. The subject *was.fresh;*every clause.was weighed, Those provisions had been a matter of investigation for time© successive sessions of congress, and had been successively amended. Can it be said, then, that eongresS had not a view of the. whole ground, that they were liurried in the passing of this law. The very law they were considering was *an*amendment, and would naturally cause enquiry and reflection. .

In mature deliberation, therefore, they, in the year1800, enact the present law. They discriminate between prívate .unarmed vessels and goods, allowing one sixth for salvage, and for the *vessel alone,*if armed, a moiety. The recaptured property,of the United States is placed in a distinct section, wholly unconnected with the other*

. If we attend to the language of the,last clause of the first section, giving to .the recaptors the moiety of a private *armed vessel,*we shall ascertain the reason , why a greater salvage was given for the vessel than the goods.

- Thesec,tian states, « and if the vessel so re-taken shall appear to have been set forth *and armed as a vessel of war.”-*if (be enemy are thus possessed of the means, of injifping ofir trade and of capturing other vessels, then, as the wresting those weapons from their hands prevents the' perpetration of further mischief, for this meritorious service we will give to you onp half of those instruments of annoyance,and destruction. The same reasoning will not apply, to the goods ; the public reap not the same benefit from their re-capture.

Rnt jt has been heretofore argued in this cause, that a greater rate of salvage should be allowed than-one *257Sixth, and that a construction to thaleffict should be given to the statute, because the service was very meritorious; the property liad almost reached an enemy port, an,d bat for the management and intrepidity of the re-Captors would haVe been wholly lost. And is not that the case in every capture by a belligerent? Did not congress know, when tiiey passed this law, thr diffi< ulty ofgettmg prizes home ? Were they riot then in fact more destitute of a naVy than at present ? In pursuance of this' argument. of extraordinary merit Upon the present occasion, it has hfeen urged that the re-captured vessel was armed ; and that life was hazarded equally in re-capt ring Hie goods as in re-capturing the vessel, in the present instance j\t is idle to talk of danger; the Adeline from her artha'ment was incapable of making resistance, and whether she did or not is problematical, ás from the preparatory examinations there appears to be an uncertainty whether any resistance was attempted, It Is, however, certain that the resistance, if any, was a mere parade; qnd that having fired one or two guns, the vessel instantly surrendered. Not a soul was hurt on either side, and the privateer did not deem the resistance sufficiently important to return,■

• But admitting that the service, by any chance, might have been very meritorious; that great gallantly might, have been displayed and many lives lost; yet under this statute. I know not how hny' Court can interfere with its settled provisions.

In the case of the Apollo,, a *Rob,.*.^50, which vessel was cut out from under the guns of a French fortress,’ where much daring spirit was evidenced on the part of the re-captors, and much danger hazarded, ánd where. extraordinary salvage was applied for, Sir William Scott says, “ all re-captures within the act are put upon the same footing of merit and reward; therefore all that is said on the particular gallantry, of the. service is foreign to any singularly favorable application of this act which has provided but one measure for all cases, without reference to circumstances.”

With respect to the property of alien friends resident •in the United States; and ré-captured' iri this vessel, I *258only remark that the provisions in the, prize act apply equally to them as tó óur own citizens residing within ous,territory.'

A claim has also been intérposed-by,the ownérs of the schooner Adeline for freight and primage of that part, of the cargo which is not owned by them. That such should be allowed I would respectfully contend there can he no question, as the voyage has been performed, and the ear o delivered at its port of destination. But the re captors assert that they are.éntitled to a salvage of this freight. On the part of the ownérs, this is opposed ; first, because salvage of the freight is not given by the statute, and, second, because it is in fact allowed in the value of the goods.

The act has prescribed the terms on which the vessel and goods are to be restored. The Court cannot add to those terms. The re-captors have no means of procuring this salvage, except by witholding the goods ; but the act declares that the goods shall be given up, upon payment of one sixth of their value, without making any provision for salvage of freight. Against whom could the decree for a salvage of the freight lie? Not against the goods, fu* they are delivered up; not against the owners of the goods, for they are hot before the Court.

But salvage of freight is in fact paid in the increased value of the goods. The presumption is that the merchandize is enhanced that value by the importation. Now the salvage is nut on the invoice value,- but. on the *true value*of the goods. This value is ascertained by. sale or appraisement at the place where-the property isj brought; .no deduction is made except imports and duties. Besides, the re-captors should not claim an additional recompense for perfecting that without which they qpuld not participate in the cargo» The bringing this property safely in entitles them to the one sixth of its-value, and that alone is specified in the statute, as tlieir reward.

The. district Court, from whnse^decision the re-captors have appealed, decreed, on the 9th of August, 1814, that there captors should have as salvage one sixth part of *11 the goods on board this vessel owned by Americas *259Citizens .and alien friends residing in the United States, and also a moiety of the vessel, her tackle, apparel, &c,

In this decree the Claimants of that description esced.

The re-captors have ky successive appeals brought this case -before this Court. The funds arising from a salé of this property, which sale took place before the decision of (he- district Court, have been lying tin-productive in. the last mentioned Court ever since. If this Court should affirm the decree of the Circuit Court in the above mentioned cases, then fhose Claimants pray that.costs and damages mav be awarded them.

D. B> Ogden, *for all the Claimants.*

This vessel qnd cargo were re-captured by the Expedition from the English, who had captured her, on a voyage from Bordeaux to New York. The Adeline is American property, and her cargo part of it American, part French.

The Adeline and cargo are libelled *as enemy’s property,*.and'the libel prays that they may be condemmd as such. The claims deny the fact of its being enemy’s property, and aver that in some cases it is American property, in others that it is the property of alien friends.

Before I consider the questions raised by the captors^ I must first bpg-leave to call the attention of the Court to some observations upon the nature of this cause as *it*appears from (he libel, claims and evidence.

*The libel,*charges the property as being *enemy’s,*and prays'for its condemnation as such.' *The claim,*denies the f-ict of enemy’s property, and .avers that it is American or the property of alien friends.

It is evident that the only point in issue, the only question arising between these parties upon the claim and libel, is whether this property be or be not enemy’s, arid as such liable to condemnation ?

In all cases of prize there must be a *regular1 judicial**260*proceeding,*and so in ail other cases in a Court of &d« miraity as well as in any other'Court» ' (Bee the answer to the Prussian memo) iai, in the appencix to Chitty’s ¡aw of nations, 314, also to be found in *collectanea jurídica. ■*

All regular judicial proceedings consist of the proofs and allegations of the parties. The. allegations of the parties are- first made, and then the proofs are produced' to support them. 1 understand the rule to be un> versal in all Courts in which there are regular judicial proceedings, that as a party cannot recover upon allegations w ithout proof, so neither can he recover upon proofs without proper allegations. The judgment of the Court must he according to the *proofs and*allegations.

What are the allegations of the parties in this case ?

The libel is in the nature of a declaration in a common law' Court, or of a bill of complaint id a Court of equity. It must state sufficient facts for condemnation, with sufficient certainty, and conclude with a proper and. sufficient prayer. It must apprize the person claiming the property libelled of the grounds upon which a condemnation will be dskcd, otherwise it would be more thaq useless to require a libel at all.

Now this libel alleges or charges that this is. enemy’s property, and asks for a condemnation of it as such.

Unless the evidence in the cause proves it to beene- . my’s property, I apprehend the Court never ynill, under this libel, condemn it.

The documents on board the,captured vessel, and all the examinations *in preparatorio,*so far from proving the property to be enemy’s property, pi-ove directly the reverse,; arm indeed it is not pretended by the counsel for the captors that there is the least ground to suspect the property or any part of it to be *hostile.*

Can tire captors have a decree for salvage in this case? I th nk not, because they do not ask for it in their libel $ because the question here, is not whether the captors are entitled to salvage or'not, but whether this is enemy’s. *261property or not *1*1 do not believe a single case can be pi-odüred in the books where salvage has been decreed unless it was specially asked tor by the libel. A libel, like a declaration, nsay contain several grounds of a or, to speak in common law language, *several counts*And there must be a count for salvage, or it cannot be decreed.

In *Hall’s Jkhnirallij practice,*144, will be found a precedent of a libel where salvage isclaimed, drawn by one of the most learned and experienced lawyers, particularly as'a civilian,in tbe United States; which,.although no authority, witi certainly be coftsidcrcd as entitled to some weight, as shewing the opinion of an enlightened lawyer upon the subject.

It is ■ no answer to this argument to say that where property has been libelled as prize, property of friends . is frequently condemned upon the.ground of residence in an enemy’s country or trading with an ene. y, because siK'ii property is considered, *quoad hoc, as /enemy’s property,*and therefore comes within the allegation of enemy’s property in the libel.

If I am right in the argument upon this subject, then I think it follows of course that if this is not enemy’s property it cannot be condemned to the captors; but must be wholly, restored to the Claimants without any salvage whatever. It is no hardship t,o the captors to acquit the property *;*they knew the facts-when-they filed their libel; they made their election in. what way to proceed against it; and, like all other parties in a Court of justice, they must be bound by that election.

This., being property re-captured from the enemy, must, be considered, pntaa/aeier notasenemy’s property., It. cannot be presumed that they would capture their own, property. ■

Now property re-captured from an enemy never can-he proceeded against as prize of war; it is not considered as enemy’s property until, in some countries, it lias been . carried *infra*presidia; in others, has been twenty-four hours in possession of the enemy; in England, and *262wilder our prize act, until it has been condemned in a coni peten t'Court.

If the captors have any claim to any part of this property, it must be because' *rt-ctmiurea jrom the -enemy.*But ho stick clami'is set up in the libel: the right of property remains,in the Claimants; it has never bi en changed, and must therefore be restored to them.

But it is said that some of these,claims are insufficient, because they dp not $ay that the property belonged to the Claimants at the tinte of'shipment, but.nierely at the time of capturp.

I answer, if the property belongs to the Claimants *now*it is all which the Court wili require in tins cast., I have, already, endeavored to shew that the capiors have no' claim to the property; it follows, then, that, the. Court will, restore it to the *proper owners*at the time of the decree. Suppose, however, that 1 am wrong in the principles-which i have endeavored to establish, and that the captors < can have a decree in their favor in this case ;• let me enquire whether the claims above alluded to are not sufficient.?'All that is, necessary for the claim is to deny the material allegations in the libel. The allegation here is that the property is enemy’s prop< rty, anil as such liable tobe condemned. This allegation is expressly denied by the claim. Nothing more is ever*, required in a claim.

"Where there are any circumstances which raise a presumption that the property is enemy’s; such as com-' ing front an ommj’y. port, found on board an enemy’s, vessel, Ac. &e. then .it becomes necessary for tlm Claimant to explain away those circumstances, to prove the friendly nature of the property, to shew it. to have been ■ friendly at the. time of its shipment. &c. which is done in-what is called. “ *the test affidavit,”*notin 'the claim.

But iñ oases where the property, from the circumstances of thp case, must necessarily he presumed to belong to our own citizens or our friends, (as in the case of a re-capture) then no *test affidavit*can be necessary.; then no explanation is asked, because none is required.

*263If these claims are insufficient, does it'follow that this property must be condemned ?

The claims being insufficient, the Court, will either suffer the Claimants to amend them, or they will consider them as no claims, and dispose of the property-accordingly.

If an amendment is allowed, there can be no difficulty in removing this objection.

If the claims are considered as no ólaims, is the property to be condemned as a matter'of course?

If the captors in case of capture senu in a vessel, after taking out the master; supercargo and every other person who- would probably claim; and leave on board only one or two of the crew whose examinations may be taken *hi preparatorio,*and who are wholly ignorant as to the property on board, — if when a vessel and cargo thus sent i« is libelled as prize, is it to be condemned of course as prize, because no claim is put in or. filed, for it?

If all the papers and documents, and evidence *in preparatorio*prove the property not liable to condemnation, is it to be condemned because no claim is filed for it by the owner ?

This doctrine would follow from.the arguments upon the. other side, but it is too monstrous to be supported by any Court.

I take the law upon this subject to be this, viz : The proceedings in a Court of admiralty are *hi rem.*The subject matter is, in substance, in possession of the Court, and they never wi’I decree it to the captors or to any other persdn, unless they can shew « *right to it.*They never will give the captors my property because I do not claim it, not being possibly in a situation to know that it has been captured or libelled.

If there be no claim filed, the Court will examine tl» papers and examinations *in preparatorio,*and if; from *264the face of them, there appears good ground of condena* nation* they will condemn,, otherwise not.

-It is not ¡ike the case bf a judgment by default in a Court of common law, where the Plaintiff takes judgment, for his debt; because, at commmon law, the process has been personally served upon the Defendant, he is actually in Court, or lias been proceeded against to outlawry. No surprize can be complained of by him. Not so in a Court'of *admiralty,*where the proceeding is *in rap;*and when the owner may never know that his properly is in jeopardy. The. Court being possessed of it, are bound to give it up to no body but him who has a good right t.o it. If from the libel ami the proofs before the Court it appears that the captors are entitled, to the property , the Court will decree it to them ; otherwise not. And for this, among other reasons, it is an invariable rule that a claim must always he put in *under oath,*so. that if the Court order property to be restored to the Claimant, they may at least have some evidence of bis right to-it.

For these reasons if there were no claims put, m to this property at. all, yet, as from the proofs in the case taken'iíi *preparatorio*it is clearly not enemy’s property, I contend that the Court could not condemn it as prize of war.

This case, being that of a *re-capture,*is a case in which the questions are, whether f he property shall be restored to the original owners, and upon what terras ? As there is .ño pretence that the property belongs to an en-my, there is no reason that the claim should negate a transfer *in transitu; ■which*transfer is void only when its effect would be to neutralize belligerent property.

If the iSibel in this case be such as the Court Can proceed upon to award salvage to the captors, I shall now briefly examine upon what terms the property in question must be restored to its former owners. This property consists,

i. Of the vessel claimed as American property and proved to be so.

*2652» Of property of American citizens stated to be resident in the United States.

3. Of property of American citizens, whose place of residence is not stated.

4. Of property of alien friends, resident in the United States.

5. Of property of subjects of France, residing in France.

*First, us to the vessel.*

By the act of congress of 26f/i *June,*1812, entitled « an act concerning letters of mas que, prizes and prize «goods,” *section 5, vol.*11, *p.*240, « it is enacted, « that all vessels goods and effects, the' property « of any citizen of the United States, or of persons «resident within and under the protection of the « United States, or of persons permanently resident ««■within and under the protection of any foreign prince, « government or state in amity with the United States, « which shall have been captured by the enemy and which « shall be re-captured by vessels commissioned as aforéis said, shall be restored to the Iaw'ful owners, upon pay- « ment by them respectively of a just.and reasonable «salvage, to be determined by the mutual agreement of « the parties concerned, or by the decree of any Court « having comp tent jurisdiction, according to the nature « of each case, agreeably to the provisions heretofore «established by law.”

. Now the provisions heretofore established by law are to be found in an act of congress passed on the *3d March,*1800,, *volf,*5, *p.*38.

This act after providing for the restoration, of vessels and goods,' after re-capture, upon the rates of salvage therein mentioned, proceeds in th-\se words, « and if the « *vessel*so re-taken shall appear to have been set forth « and armed as a vessel of war, before such capture or « afterwards and before the re-taking thereof as afore- * said, the former owner or owners on the restoration *266« thereof, shall be adjudged to pay, for and in lieu of « salvage, one moiety of the true value of such vessel «.of vvar or privateer.”

Under this act Í presume the Court cannot hesitate in affirming the judgment of the Circuit Court with costs and expenses of prosecuting this appeal.

*Second,*as-to the property of American citizens, resident in the United States.

The act of *March,*1800, *~ool. 5, p.*38, is positive in its provisions upon this subject/ the property must be restored upon one sixth salvage.

The decree of the Circuit Court upon' this property, I contend ought also to be affirmed with costs.

*■Third,*as to the property of Americkn citizens, whose place of residence is not stated.

This, in my view or the subject, is the only point in-the cause upon which the mind can at all hesitate, and' when this' is fully considered, I trust all doubt upon it will vanish.

It is contended on the part of the captors, that as no place of residence is mentioned, these American citizens • must be considered as resident in France, and tljaf the rule as to the restoration of the property of French . subjects must therefore apply to them. To this I answer,

*First,*T do not think the presumption a fair one, that because no place of residence is mentioned, they are therefore to be consblered as residing in- Frfcnce. As tiw are. citizens of the United States, it would seem to m" that they ought fairly to be presumed as residing in the United States, until some evidence is- produced to the contrary.

If however the Court think it important, that the Claimants should prove their place of residence, they will, I . presume, give us an opportunity of doing so.

*267*Secondly,*that the place of residence is wholly hnmafcerial.

*Because,*being American citizens, and there being thing nnlaw ful in their residing in France, or any other country, with which we are at piare, they have not forfeited any of their rights as citizens of the L'nited States'. And the doctrine, that risidt-nce abroad, gh es a national character, applies only to the case of the subjects of two nations which are at war with each other; or .to neutrals residing in one of the two belligerent nations; but cannot be applied to such a cáse as this. 1 forbear howtver to enlarge upbn this point as unnecessary. - *Because,*

The question, as to the terms upon which this class of Clajmants are to have their property restored, depends upon the construction of the act of. congress, which I shall now consider.

By. the act of *March,*1800, before referred to, it is de, dared, that when any goods which shall hereafter betaken as prize « by any vessel, acting under authority from «the government of the United States, shall appear to « have before, belonged to any person or persons resz- « *dent within or under the protection of the United States,*«and to have been taken' by an enemy of the United « States,” &c. This question depends upon the construction of the above clause of the section.

In order that the property should be restored upon the payment of one sixth salvage, it must belong «to « some person or persons resident within, or under the « protection of the United States.”

If it belongs to *any*person *resident within*the United States, it is to be so restored; or if it belongs to any person who is *under the protection*of the United States, whether he resides therein or not, it is to be restored upon the same terms.

*Ml foreigners*who are permitted to reside in the United Statps, are under their protection, but no person who resides *out*of the United States is *under the protection oí*thf . United. States, but *their own citizens.*

*268In 2 *Cranch ,Rep.*120, this Court held «that an American citizen residing abroad is entitled to the protection of his government.”

*Again,*every foreigner who resides in the United States, must necessarily be under their protection, the words therefore « *or under the protection of the United*States” would be nugatory if intended to be applied to such foreigners, and no effect can be given to those words, unless they are applied to citizens, residing out of the United States, but who arc still under their protection. But if the words of the act of *March,*1800, are of doubtful import, their true construction is I think put out of#!! doubt, by the act of 26fh June, 1812, before referred to. These two acts of congress being in *pari*•materia, must be considered as one act, and construed accordingly.

The *5th section of the act of June,*1812, declares «that « all vessels, goods and effects,'the property of *ahy citi“z>en of the United States,*or of presons tesident within “and,under the protection of the United Stages,” shall be restored « agreabiy to the provisions heretofore established bylaw.”

Now there were no other provisions established by law, than those contained in the act of *March,*1800.

It is evident that congress must have intended by the. act *of March,*1800, to provide for restitution of the property *of any citizen*pf the United States, whether he resided within the United States or not. This is the only construction by which the provisions of these two acts can be reconciled.

That this was the. construction intended by congress, when these laws were passed, will.be still more evident when we examine with a little more care, the different phraseology of them.

The act of *March,*1800, says nothing about citizens of the United States, but speaks of property belonging to persons resident within *or*under the protection of the United States, thereby meaning, .as T contend,' *all*persons who reside within the United States, *and*all citi*269zens under t-hp protection of the United States, let them reside where they may.

The act of June, 1812, provides for the cases of property “ of *any*citizens of the United States,” and oi “ person's resident within and under the protection of the « United States.” .

A foreigner, *residing in and under the protection!)?*the United States, is entitled to have his property restored under this act. This clause of the sentence does not apply to citizens at all, because their property is already provided for by the words *‘.any citizen of the United States.”

By the act of *March,*1800, thé property of all persons resident within, or *of persons under the protection of the ■United States,*is to be restored; without which latter, words, no provision was made for citizens out of the country, these words were for that reason unquestionably inserted.

. For these reasons I, contend that it is ¡inmaterial where the American citizens reside, they are entitled t° have their property restored upon paying one sixth ás aalvage.

*Fowiih,*as to property of alien friends, resident in the United States.

No observations are necessary to prove that under the acts of congress referred to, they are entitled to restoration upon paying one sixth salvage.

As' to them the decree I presume will be affirmed with costs and expenses.

*Fifth,*as to the property of subjects of France residing in that country.

By the 3d *sect,*of the act of *March,*1800, *vol.*5, *p.*40, ■this property is to be restored upon the samé salvage on which, by the laws of France, the property of American citizens would have been restored to them under similar *270circumstances. And if no law or usage of France is known upon the subject* the same salvage is to be allowed as if it were the property of a person resident in the States, (viz. one sixth.)

. Now I confess I have not. been able to find what was the rule in France upon that subject.

'Whether the ordinance of *1779-,*made upon this subject, and which is referred to in the argument on the other side, was in force at the time of this re-capture or not, orwlicther that ordinance* like almostevery thing, else in that country, was destroyed during the dreadful revolution which she has just passed through, Í know not. I confess my ignórancc, and I have endeavoured in vain, to obtain intormatioirabout it.

If no such French rule is known to the Court, then I claim'this property belonging to French subjects, residing in France, upon the same salvage which by the act of congress, it ought to be restored to them, if they resided in the United States;

Emmet, *for the'Re-captors, in reply.*

Most of the cargo has been claimed; but no claim whatsoever has been put in for the property expressed in the bill of lading, No. 23, (26 bundles of steel to be delivered to'C. W. Huty, of Philadelphia,) nor to that ex-pressed in' No. 33* (a harp and case of strings to be delivered to T. Delort* who has come in and claimed other property,) nor to that expressed in No. 39, (1 case of pencils, on account and risk of Mr. Fongarolly, of New York.) This circumstance would not have been noticed here, but that it is called for by part of Mr. Ogden’s argument, who (partially admitting that a bad claim is tantamount to none at all) contends that the want of one is no ground for condemnation. In England, by the prize áets, regulations aremadc incase of non-claims for a limited time. In our Courts, for want of any such regulations, defaults, as I understand, áre usually taken, but the property not put out of the power of the Court for a reasonable time. It is unnecessary to discuss the propriety of that arrangement in the present case; for certainly, after the lapse of a year* where the parties, who ought to claim-, *271afe in the immediate .vicinity of the Court,' and have come forward , with no claim at all, or one not'disclosing what is necessary to ascertain the innocent character of the property, or the foundation or. terms upon which restoration should be had ■; where they have refused the sanction of an. oath to. verify documents that, without jt, may well be *questionable;*there can be ho ground for awarding restitution to them. Their silence, or evasive mode -of claiming, must be regarded as intentional; and indicating that they cannot make «ut a fair casé for restoration.

Mr. Ogden contends for restitution without salvage, on,another ground; that this libel being for condemnation as enemy’s property and prize .of war, salvage cannot be awarded under ittherefore, says he. it.must be restored without salvage.. That conclusion is clearly illogical, for if it were true that salvage could not be awarded under these proceedings, the only consequence would he that the property should be retained, an;d.the re-captors turned round to libel for salvage. The position itself, from which'the conclusion is drawn, is, also, erroneous .for in all cases of *military salvage,*the proceedings are as against, a prize, and the payment of salvage , is a condition necessarily imposed by the decree of res-' titution on the Claimant. It is not properly the thing sought for by the Libellant and contested by the Claimant. I do not mean to say that it may not have beep: done from greater caution aqd perhaps want of practical experience, in the United States ; or that if done, it ought not to be supported, b.ut it is neither usual nor necessary. Mr. Ogden refers to a precedent of that kind in Half's admiralty practice, I have not the book by me, and can-: not refer to the authority, but if it be a libel for mere military salvage, the introduction of it in that book shews that the authors ideas were not very well arranged upon the subject which occupied him ; for his book is only *k*translation, of *Clark’s Praxis Curiae JIAmiralitatiS’,*which treats exclusively of the *Instance Court,*ami has no relation to the prize Court óf admiralty. It is sufficient.1 however for me to "say that no precedent o.f a libel for military salvage is to be found in Maryatt’s Formulary, or any English book of authority, and that obviously all the'cases in Robinson’s reports, where suph salvage is decreed, are brought up under the prize- jurisdiction, *272and were proceeded against as prize of war. Let me ask by'what right was the Adeline taken by the Expedition and held? Unquestionably *jure belli.*By what right, or by what course of proceedings were the re-captured crew examined *in preparatorio,*or the papers on board her opened and inspected by the prize commissioners ? Because she was subject to be dealt with according to prize liiw. By a former prize act of England (33 *G.*3 c. 66, *§*42,) it was enacted that re-captured ships set forth by the enemy as vessels of war,-should *wholly belong*to the captors, and not be restored to the original owners. How was sucli a vessel to be proceeded against, but by libelling her as prize, and condemning her as enemy’s property ? So in the present case, part of the re-captured property is French, which we contend (and for the present I shall take for granted) ought to be condemned to the captors and not restored at all. How are we to proceed for that condemnation, but by libelling as prize of war ? Why, under the rule of reciprocity, is it not to be restored ? Because by the French law belligerent property, of which an enemy has had .24 hours possession, is considered to have changed owners, to be the absolute property of that enemy, and when re-captured it is treated as the absolute property of that enemy, and condemned as such by libel for prize of war. The rule of reciprocity, (1 *Rob. Ad. Rep. Jim. Edit. p. 53, in the ease of thé Santa Crux,)*induces us to consider French property, (placed in such circumstances as would, under the laws of that country, be held to make a complete hange of ownership of American belligerent property,) as also acquired by the enemy; and to adjudicate upon it as actual enemy’s property *;*of course to libel and condemn it as prize of war. JVbra *constat*till the claims are put in and sworn to, but that property, apparently American,.is actually French; and it *ik*necessary to proceed for prize, irt order, to get those, claims and ascertain that fact. A remarkable instance of that occurs, eyen in the present case. The bill of lading (No. Í5.) of 280 cases of .claret, state them to be shipped by order and for account and risk of David Dunham, (presenting a *prima facie*case of American property,) but when Mr. .Dunham comes to claim on oath, he states them to be the property of Messrs. Johnson and Dowling subjects of the French empire. How was the knowledge of that fact to be obtained, but by forcing a claim on oath ? and if we *273had proceeded by libelling only for salvage of the property as American, how should we have learned that it was really subject to total, condemnation as enemy’s property, under the reciprocal application of the French law ? The proceedings in this way are also the most simple. The Libellant claims the benefit of iiis *prima facie*right arising from capture ou t of enemy hands j ure *belli.*If there be any title to be opposed to this, it must be shewn and.sworn to, and the Court will then decree, according totheextentofthattitle, either total restitution oí* restitution on terms of salvage. In ordinary *civil salvage,*which falls within the jurisdiction of the Instance Court, 2 *Rob. Ad. Rep. Am. Ed. p.*178, *note on "the case of the Hope,*the salvors never acquire a right of seizing the property, and their first step (if they proceed against it), is a warrant of ari'est; they then libel for salvage, be-, cause they have no superior or *prima facie*title to the thing itself; and the contestation is about the’amount. But a careful examination of Robinson’s reports, 1 Rob. *Am. Ed..*32, *Aquila.*42 *Santa Cruz,*228, *The ■ Two Friends:*3 *Rob. Am. Ed.*249, *TheAppóllo.*4 *Rob. Am. Ed,*120, *The Franklin. 5 Rob.*,Eng• *Ed.*-54, *The Carlotta, 6 Rob. Eng. Ed. HO, The Sansom,*will shew that is not the course' of proceeding, where the property has been re-captured in war; and the only reason why it is not more clear, is that the matter, being long established and of course, is not noticed in the very brief statements which' that reporter prefixes to the arguments of counsel and judgment of the Court. Enuugh, bowfever, is given to establish my position. The *Aquila,*(1 *Rob.*32, 35,) was a case of *derelict,*and, properly speaking, would have belonged to tile Instance C -urt. It pp -ars, however, from the judgment, that “some suspicions occurred that “ it was in fact the property of an enemy; and under “these circumstances it became expedient *to proceed*“ *against it as prize, for thepv/rpose of meeting'the preten-*« *sions of the ostensible neutral owner, and of bringing the*“ *examination of his claim, where aloné it could be proper-*“ *ly diseussefl, into the prize Court.*These measures were “ highly necessary, and therefore no objection can justly “ be made against, the mode of proceeding.” In the c.ase *oi-Tlie Two Friends,*1 *Rob.*228, 231,238, a protest was made against the jurisdiction of the Court over an American ship. The counsel on both sides allow that re? capturéis a matter of prize jurisdiction ; and in the judg*274ment, sir William Scott sáys, “ but whatever may be the “ law as to wreck and. derelict, I .conceive it does not ap“ply to these goods, which I consider to'be goods of “ prize ; for I know no other definition of prize goods, “ than that they are goods taken on the high seas Jure “ *belli*out of the hands of tile enemy $ and there is no ax- “ iom more clear than that such goods, when they come “on .shore, may be followed by the process- of this “ Court,”. In the-case of *The*Franklin, 4 *Rolf.*140, the property wms libelled as enemy’s property and prize of war¿ and further proof whs ordered of the. property and destination. It was made and deemed satisfactory ; .but the captors insisted that restoration should only be made on terms of salvage. This was resisted by the Claimants with arguments which perhaps have given rise to the present point by the Claimants, although it was not a case of re-capture-or seizure *jure belli*from an enemy. Sir William Scott.held it was acase in which *no military salvage*was due *•,*hut directed (as the price of restoration in this prize cause,) a civil salvage' of 500Í. to be paid. In the case of the *Jonge*Lambert, 5 *Rob.*54, reported in abiote to the *Carlotfa,*a *Dutch*ship and cargo captured by a French privateer and re-captured was libelled as enemy’s property arid prize-.of war. She was condemned in the Court below. The sentence was.reversed on appeal, but as it was *neutral*property re-captured, the. lords of appeal referred it to their surrogates to decide whether any and what salvage-was due,'with provisions'for executing their decree. The surrogates decided .that no salvage was due ; but it is clear that if it had been a case, for salvage, the restitution, on this reversal of the sentence. >f condemnation, would have only been on payment of it. It .is unnecessary to discuss .the arguments drawn from oiir different and totally inapplicable modes of proceeding under our municipal code. And I.shall Only, add that if. the objection taken to this mode of proceeding should be sustained, as the error, though fallen into after much consideration, arose from want of sufficient light and information’ in our books, it is hoped that the opportunity will be afforded to the salvors nf instituting such proceedings as may be thought adapted to their case.

There is a matter about which the counsel for the Claimants have fallen into, a mistake: they state the Li-*275bell ants to have appealed from that part of the decree which restores the ship on payment of a ihoiety of the value for the salvage. There is fit! such decree on the record. The restoration of'the vessel on paying a ety for salvage was agreed toby all parties, and therefore has in fact never been decreed at all and never has been disputed. If the vessel were understood to be included in the words of the decree, “American property,” we should indeed have ample grounds of appeal; for the salvage ordered would be only one sixth. That, however, is not the case, and nothing is brought before this Court, but the questions relating to. the re-captured *goods.*The same answer applies to the mistake, that we have appealed from the decree of the Court refusing us salvage on the freight. There is no such decree and we never asked it, as our libel shews,, though the case of the lloro*thy Foster, 6*liobt *Eng. Ed.*88, shews we are entitled to *it.*No question of freight was ever presented in this case, but by the *claim*of Ah xander Cranston' (for the .ship owners,) of-freight for the goods not claimed by him for them; meaning to make oúr salvage on the goods pay. a proportion of it, and so diminish its amount. That was not adjudged, and of course we have not appealed 5 .though if it had been decreed, wre certainly should ; for it could be supported by no principle, and would he directly contrary to the act .of congress.

These questions being out of the way, nothing more remains but to consider what is to be the fate of the recaptured goods which have been claimed, with the incidental consideration of costs and expenses. Part of this property has been claimed, and.sworn to, only as belonging to the alleged owners *before and at the time of capture,*without, say ing any tiling as to its ownership *at the time of shipment.*On this insufficient mode of claiming and its consequences I shall add nothing to Mr. Woodwards arg iment except a reply to Mr. Ogden’s observation, that there is no reason why smell transfers *in transitu■*between belligerent friends should be prevented. This very case shews otherwise.; for if the property continued French, it would be subject to condemnation as enemy’s property and prize of war; which belligerent jqight would be defeated by such a transfer.

I shall endeavour to simplify the discussion by first *276considering, the great general division of French property, and of American property re-captured ; and will endeavour to class the doubtful cases under ohe or other of those heads.

*As to the French property,*it clearly must be judged upon according to the rule of reciprocity. In France, Amt rican belligerent property .which had been 24 hours' in the possession of the enemy captors would be treated and,Considered as their property, and not restored on salvage. The law of 24 hours possession has in truth been always the rule adopted by France- and Spain, and most if not all the powers on the continent j for although they may *desire*a decree of condemnation, they desire *it*only as the. most portable and compendious proof of the facts (including 24 hours possession) from which the title lias accrued. -They do not regard the decree as *cred-ting*a title to the property, which doctrinéis in truth only confined to England and this country; and was not held even by this country during the revolutionary war. France has ajso made an ordinance on that subject, which is to be found in 2 *Azurd,*276, and of which this Court must well be held to have judicial knowledge; for the prize Court, to'which it has succeeded, has recognized it in the case of *Miller ^al, Appellants v. ship Resolution,*2 *Dallas,*2. That this was the Jaw of France down to and long after tin- revolution, has not been doubted; and indeed cannot; for Azuni’s work was published after ■4803, *fVtd.*2 *Azuni.*218,J but it is thought *possible*that it may have been subsequently altered ; and from the pretended ignorance on that subject, a claim for restoration on American salvage is made. The claim is singular; for it is predicat'd not on the rights of the parties, but on the supposed ignorance of the Court. It is not sanctioned by the words of the act of *March 3d,*1800. (§ 3, icol. *5, p.*38.) which provides that *“*where no such law or usage shall lie known.” the same salvage shall be allowed as is provided by the *1st section*of that act. That inbans, where no such law or usage shall be made knowrn or promulgated or acted upon. It refers to cases in which, on enquiry, a state shall not be found to have adopted any precise law or usage on.the subject; but it founds no right to a suitor, on supposed judicial ignorance. The ordinance of 1779 is,- however, a known law, -and it must be considered as valid until those who insin*277«áte its abrogation give some proof of their assertion. The *onus*is v\ itli them, and the'means of proof, coming from their ówncountry, are certainly within their.power; Í *Rob. Jim. Ed.]>.*56, 57. The presumption as wéfl as the fact, therefore,-is that there has been no variation or abrogation oi the ordinance of 1779.

*The property of American citizens resident in France*must, as I conceive, or considered as French, and subject to the same rule. This effect of domicil dr national character is producid in every (as'e. where that character is judged of merely by'the law of nations. Birth, by the municipal laws of many countries,Js considered as fixing an indelible national characterj but that doctrine seems entirely dependent on municipal law, and is n d tó be found in the writers on the law of natiorfs. Birth, with them, affords a *prima facie*presumption of residence, and serves to establish it where other facts are equivocal or *silent;*and in that sense sir W. Scott must be understood, when he says, in the case of *La Vtrginie, 8, Rob. 98, 99, “ that■ the*native character ea- « sily n-verts, am! that it requires fewer circumstances to « constitute domicil in the case of a native subject than « to impress the national1 character on one who is ori- « ginally' of another country.” But birth ceases to afford evidenced the national character under the law of nations-, when opposed to a clear residence, *animo manendi,*in another country *;*for, says sir William Scott, in *the Imitan Chief,*3 *Rob. Mi. ed.*23, “ no position is more « established than this, that if a person goes into ano'-' «ther country, and engages in trade,: andi*esides.there, he «is by the law of nations to be considered as a merchant ofthat country.” in some of thesecases (the particulars of which I shall hereafter point out) it may perhaps be contended that, although the owner of the property appears to be resident in France, the permanency of his residence or the *animus .manendi*does not appear ; but to that I again answer in the words of sir Wm. Sco'tl, in the case of *the.*Demon, 1 *Rob. Jim. ed. 87,*88, «wherever it appears that the purchaser was in '« France, he must explain the circumstances of bis « residence there: the presumption • arising from his « residence is, that he is there *animo manendi,*and it « lies on him to explain -it.”. For every purpose,'therefore, either of conimerce or of war, to be decided upon *278solely by the law1 of nations, these American citizens resident in France must he regarded as l' rent hmen. But it is contend', d that with resp»-ct to salvage they are protected by the woikis used in the act of congress of March 3d. 18Ó0, § *l, vol. 5,'p.*3S, “ any pers<-n or «« persons resident within or under the protection of the United States;” which last expression, it is. said, necessarily includes American citizens every where. If this were, the intention of the legislature, it is very singular that.it did not simply say “ any ciiizen of the United Stafes, or any pers.on or persons resident therein.” •It seems to me, however, that the Word *resident*w liich is *expressed*in the first, is *understood*in the second men her of fhe sentence; and that it should be read “ any person “ or persons resident within, or resident under the pro- ‘« tection of the. United States.” An inhabitant of one of the territories comes within the last but not the first description. — so does a consul or other public ministc? Vlio has not by habitual commerce and residence acquired another national character.. Other instances of j'csidefice'-uuder.the protection of the United States might be produced : but an American wi¡o has changed bis national character, and-become, for every purpose of war and commerce,'a member of another community, can no longer be regarded .as under the protection f the United States. I am at a loss to see bow America eould afford protection to him. If she were neutral, and the country of his residence belligerent, would his commerce from that country be under her protection ? The laws relating to re-capture and salvage were made with a view to America’s being belligerent, and must be construed in relation to that state of things : In that state, does she or can she afford any protection to a merchant residing abroad, whose protection and character must Exclusively depend on the hostility or neutrality of the country to which he belongs as a permanent member? The interpretation put upon this phrase by Mr. Ogden would make the first and third sections of the act of *March*3d, 1800, at variance with each other, and the same person subject to two inconsistent measures : for unquestionably such an American permanently resident in a foreign friendly country comes under the description of a “person permanently resident within the territory and under the protection of a foreign ‘« prince,” *he.*

*279Th *e fifth sectionofthe act of June,*1812, cannot; explain the' antecedent law of *March,*1800 ; for it is obviously inadvertently worded, and not intended for any purpose of explaining, altering, or affecting that law. If mistaken substitution of the word *and*for *or*could have any effect, it would be only to shew that no person residing out of the United States in a consular or public capacity could be deemed under their protection. - The truth, however, is, that the last act contemplates nothing more than to place re-captures by private armed ships, on the same footing with those made by public vessels of war $ and it accomplishes that by a very loose phraseology.

If I am Well founded in the foregoing arguments, jfc will follow that the decrees of the Courts below respecting French property and that of all the residents in France, whether native Americans or not, should he affirmed; and (if costs and expenses are to be.at all given in this case) with both.

I shall now consider the question as to clear American goods recaptured. The Adeline was a private vessel of war, having alettér of marque; and, when in the pos-, session of the English, she fought with and made resistance to.the privateer Expedition. There can, therefore, be no question but that the salvage of the vessel itself must be one half. The Claimants, however, contend that such a rate of salvage only ext unis to the vessel; but-that goods re-captured on board of even an armed and commissioned vessel toast be restored on-paying one, sixth; that being the rate specified in the act of *March 3d,*1800 : and in support of this opinion several rules for the construction of statutes hav>‘ been cited, it is my duty, and I trust I shall do it successfully, to maint ain the opposite doctrine. In order to do so* Eshall observe that salvage has, in every country and in every code of laws, been considered as a matter of general average: the service is an act done f- >r the common benefit, and to be recompensed by common and proportionate contributions. Vessel and cargo always contribute expressly; freight, in some cases, expressly; in others, really but less obviously, where the salvors receive their proportion of the cargo or its value without paying freight. If the act of *3d March, 1800,*meant to *280break in upon tins established principle of proportionate contribution for a common benefit, it-is witbput. precedent in any other codo; arid an unreasonable departure from an universal usage 'founded' on justice and common utility. Such a supposition should not be indulged in; and it is indeed fully confradicted by the second section of the same, law; tor there, regulating the salvage on the' rc-capture of a public armed vessel, it enacts that for the re-rapture of a public armed vessel *or any goods therein,*one moiety of the true value thereof shall be paid. No satisfactory reason has been or can. be assigned why the United States should be obliged to pay differently and in a greater-proportion for the benefit of re-Capture than private individuals deriving equal advantage from'the act. This second section of the act naturally, presents the question, how it .happened that the legislature omitted to mention expressly in the first section, goods on board such armed vessel ? I think I can answer it. The first section is copied from the English statutes on the same subject, varying tbe proportion ofsalvage, and with one addition the operation and force of winch, perhaps was not sufficiently adverted to at. the time. Statutes of 13, *G.*2, c. 4. — 17, *G,*2, c. 3.— 29, *G.*2, c. 34. — 16, *G. A, c. 5, cf*33, *G. 5, c.*66. They give one eighth for salvage of vessel and goods, but enact, that if the re-capturcd vessel shall have been *set forth as a vessel of war during iis possession by the enemy,*the salvage for the vessel shall be one had'. Here the principle of proportionate contribution for a common benefit was not departed from; for to s>-t (be vessel out for war, it must have been conducted into po'-t, and, of course, the cargo-which it carried at tbe time of capture discharged, and tbe connexion between them'broken ; the goods which such a vessel might have on board when re-captured would be enemy’s property, and condemned as prize of war. The British acts, therefore, made no mention of such goods, they not being a fit subject for restoration on salvage. Congress, in preparing their system, although they adhered to the phraseology of the English code, thought that the same service was. rendered by capturing an armed vessel, whether it1" was originally fitted for war by Americans or their ene!mies, and therefore7 awarded 'ah equal compensation in both cases ;. but perhaps (hey ditj riot advert to the. fact, that, in the new case which they were, introducing,'re*281©aptured. goods would have to be restored, and they therefore adopted the language of the *British laws*wiín-, out inserting a provision to meet a situation of tilings that could not exist under *them.*Or else, considering the character of average contribution as necessarily fixed on salvage by universal usage, and equal justice, they thought it unne. esnary to do more than settle the rate of contribution; and the stale of the vessel being the circumstance, that was to affect that rate, .they spoke of it alone; but conceived and intended that a proportionate contribution from every thing connected with it in danger and benefit conferred, would follow as an incident. If the first supposition lie true, the awarding of salvage for the re-raptured goods oft board an armed vessel is á *casus omissus ;*and the least w<- can be warranted in saying is, that it is in the discretion of the Court to settle that rate. If it be, 1 trust it will be settled by analogy to the rule made in the act itself, and so as to preserve the harmony'uf the whole system. If the second supposition he correct, then the word *vessel*must be considered wuh a liberal interpretation, as also including all on board of it. And in support of such an interpretation, calculated to preserve received and' established usage against a literal meaning, I may refer to the opinion of the Chun, as delivered in the case of *Talbot v. Seaman,*1, *Craiich,*1. There-the Court had occasion to consider the meaning of the expression « 'any nation in amity with the United States” used in the act of *March*2d, 1799, relating also to re-captures from the enemy: the counsel for the captors contended, that the words of this law gave salvage on the re-capture of .neutral property : founding themselves, like our adversaries, on the literal extent of the expression. On which the Court observes — 1, *Crunch,*43, ,*‘The words « of the act would certainly admit of this construction. « Against it, it has been urged, and we think with great-‘‘force, that the Iáws of the United States ought hot, if «it be avoidable, so to be construed as to'- infract the « common principles and usages of nations', orthegene‘‘■ral doctrines of national law.” . The impossibility of having, access to authorities, prevents, my citing many instances of statutes similarly construed, which I have no doubt could be easily furnished. The following however happen to be within my *power*— Ploji’il. 303, *Zónch v. StoweU,**• a thing which is within the intention of the *a** *282*“*kers of the statute, is as much within the statute, as if it *“*were within the letter.” *In Eystonv. Studd, Plow.*467, that equiiabe construction which enlarges the letter of a statute is th us defined, *‘‘Mquitas est verborumlegisdirectio “ efficatius cum una res solummodo legis cavetur verbis ut “omnis aliain cequaligenere eisdem caveatur •*verbis.” And there the remedy given by the 9, *E.*3, c. 3, against executors, it is saijl. has been always extended by unequitable construction to administrators; because they áre within the equity of. the statute. *Plait v. the sheriff of London, Plowd.*36, the words of the 13, *E.*1, are, *cir- “ cumspecte agatis de negotiis tangentibus Episcopum “*Norwicenseinyet this statute, although only the bishop of Norwich be named, has been always extended, by an equitable construction, to other bishops.

Some of the claims in this causeare for property owned by *aliens resident in the United States.*Where that residence is n >t clearly .nade out to be permanent, the Claimants must take the consequence of tiie insufficiency of their claims and proofs. Tiiey are all Frenchmen. and if they have oof, shewn a sufficient domicil to obtain for them .the American national character, they must he considered as Frenchmen and abide the reciprocity resulting from their lavv. Where they are clearly permanent, residents within the United States, they will be entitled to the benefit of that character, if my reasbning as to Americans domiciled in France be correct^ if it be not, they must suffer under the rule the Court will then lay down and be regarded as Frenchmen.

It only remains for me now to say a few words of costs and expenses which are asked for by the Claimants. This case is brought before this Court by their Voluntary act and a clear consent, without which it could not have been presented on appeal. The district judge declared the principles fie would adopt for his decision ; but, strictly speaking, he made no decree on the case of any individual Claimants Those principles were considered in some respects erroneous by the counsel for the captors, and in others, by those for the Claimants. It-was therefore considered better to bring all the principles iu review before the Supreme Court, as the ex-pence would be little if at ail increased by so doing; and if any Claimant had *h tan*unwilling to become « party *283ío tliis arrangement, he might have withheld his consent; and his case could not have been brought up on appeal, till a decree had been made on his individual claim. I submit that it is therefore now too late for him to talk costs and expenses; and in truth impossible to ascertain what propprtion of costs or expenses he can sustain,

*March 10th.*

„2&sejif....ToDD, *J.*

Stout, *J.*

delivered the opinion of the Court as follows .*

The American letter of marque, schooner Adeline, with a valuable cargo on board, was captured on her voyage from Bordeaux to New York, on or about the 14th of March, 1814, by a British squadron; and, on or about the 19th of the same month, was re-captured by the Aim rican privateer, Expedition, James Clayton, commander, and brought into New York for adjudication. Prize proceedings were immediately instituted against, the wssel and cargo as enemy property ; and various claims were interposed in behalf of American and French merchants. Upon the hearing of the cause, the district Court decreed a restoration of all the property of American citizens and other persons resident in the United States, upon the payment of one sixth of the, value as salvage, and condemned all the property of French subjects and of American citizens domiciled in France, and of all others whose residence remained unexplained,, as good and lawful prize to the captors. From tiie former part of the decree the captors appealed, and from the latter part the Claimants appealed to the Circuit Court; and from an affirmance *proforma*of the decree in that Court, the parties have appealed to this Court. It does not appear in the' record that any decree was pronounced in respect to the vessel; and it is therefore probable, as intimated by counsel, that she has been restored on a compromise between the parties interested.

Before we proceed to the consideration of the principal questions which have been argued, it will be proper to notice several objections to the regularity of the allegations, proceedings and proofs in the cause.

It isj, in the first place, asserted, on behalf of the Clai*284riianis, that if this should turn out not to he a casé of enemy property, but of salvage merely, (as most certainly as to some of the claims it must be held to be) the re-captors can fake nothing by the present libel, because it proceeds upon the mere footing of the property being prize of war. And if is likened to the case of a declaration at common law, where the party can only recover *secundum allegata et probata*3 and if no count hit the precise case, the party must be non-suited.

If, indeed, there were any thing in this objectipn, it cannot, in any beneficial, manner, avail the Claimants. The most that coul.i result would be that the cause would be remanded to the Circuit Court with directions,to allow an amendment of the libel. Where merits clearly appear on t'-e record, it is the settled practice, in admiralty-proceedings, not to dismiss the libel, but to allow the party to assert bis rights in a new allegation. This practice so consonant with equity and sound principle,, has been deliberately "adopted by this Court on former occasions. After- all, therefore, the Claimants would, in the language of an eminent civilian, but change postures on an uneasy bed.

But we are all of opinion that there is nothing in this objection. No proceedings can be more unlike than those in the'Courts of common Saw and in the admiralty. In prize causes, in an especial manner, the allegations, the proofs and the proceedings are, in general, modelled upon the civil law, with such, additions and. alterations as the practice of nations and the rights of belligerents and neutrals unavoidably impose. The Court of prize is emphatically a Court of the law of nations ,• and it takes neither its character nor. its rules from the mere municipal regulations of any countrv.

In cases of mere civil salvage, it may be fit and proper-that the libel should distinctly allege and claim salvage, though we dó not mean to assert that, even in such cases, it is indispensable. In cases of military salvage, also, the party may, if he please, adopt‘a similar proceeding. But it is bv no means .necessary, and, in most cases, vvouhl be highly inexpedient. Re captures are emphatically cases of. prize 5 for the definition of prize goods is, that they are goods taken on the high seas5 *285*jure belli,*out of the hands of the enemy; When so taken, the captors have an undoubted right to proceed against them as belligerent property in a Court of prize: for- in no .other way, and in no other Court can the questions presented on a capture *jure belli-*be properly or effectually examined. The very circumstance that it is found in the possession of the enemy, affords *prima facie*evidence that it is his property. It may have previously possessed a neutral or friendly character; but if the property has been changed by a sentence of condemnation, or by such possession as nations recognize as firm and effectual, the neutral or friehdjy owner i&forevcr ousted of his right.

It depends altogether upon future proceedings ; upon thffexaminations taken in preparatory and the.documents oh board *;■*upon the verity of the claims, and the diligence and good faith of the Claimants *;*and upon the principles of international law, comity and reciprocity, whether a restoration can be decreed or not. How can these questions be decided, unless the customary proceedings of prize are instituted and enforced ? How can it be known, whether all the documents on board be not colorable and false, or whether the conduct of the Claimant be not unneutral or fraudulent, unless the truth is drawn from the parties intrusted with the property for the voyage, by the trying force of the standing interrogatories and the test affidavits ? The very case before us presents a, strong illustration of the propriety of these proceedings. There is' a large shipment on board, which, on the bill of ladjng, purports to he the property of an American Claimant; yet the Claimant himself expressly swears that it is the solé property of the French, shipper. What the consequences are of that fact will be presently seen.

The Court, then, has a legitimate, jurisdiction over the property as prize ; and, having it, will exert its an-' thority over all the incidents. It will decree a restoration of the whole on of a part j it wilt decree' it absolutely, or burthened with salvage, as the circumstances of the case may require: and whether the salvage be held a portion of the thing itself, or a mere lien upon it, or a condition annexed to its restitution, it is an incident to the principal question of prize, and within *286the scope of the regular prpze allegation. If, therefore, the case stood upon principle alone, we should not doubt as to the sufficiency of the libel for this purbut it has, also, the clear support of the practice of the admiralty. *The Aquila, 1 Rob. 37. The Franklin,*4 *Rob.*147. *The Jonge Lambert,*5 *Rob.*54, *note.*

Another objection urged on behalf -of the captors, is to the sufficiency of the claims and test affidavits. It is asserted, and truly, tiiat the goods are not alleged, ip the claim, or áffidavits.to have belonged-to the Claimants at the time of shipment; it is only alleged that they so belonged at-the time of capture. Regularly the test affidavit, should state that the property, at the time of ship-, merit and also at'the time of capture,, did belong, and will, if restored) belong to the. Claimant; but an irregularity of thip nature has never been supposed to be fatal. It might, in a case of doubt or suspicion, or in a case calling for the application of the doctrine as to the legal effect of changes of property *in transitu,*have justified an order for further proof: or, incases of gross negligence or pregnant fraud, have drawn upon the party more Severe consequences. But in ordinary cases, it is riot deemed to work any serious consequences : in this instance, it probably passed unnoticed in the Courts below, where if the blot had been hit, it might have been instantaneously removed by an amendment. Another irregularity undoubtedly was,' that the test affidavits were put *m,*on behalf of many of the Claimants, by their agents, although the principals were resident in the U. States, and within the reasonable reach of the Court. Where the principal is without the, country, or resides at a great distance from the' Court, the admission of a claim • and test affidavit by his agent, is the common cotirs11 of,'the admiralty. But where the principal? is within a reasonable distance, something more than a formal affidavit by his agent is expected. At least the s.upjdetory oktli of the principal as to the facts, should be tendered ; f»r otherwise its absence might produce unfavorable suspicions. If, indeed, the principal might, always- withdraw himself from the view of the. Court, and shelter his pretensions behind the. affidavit of an innocent or ignorant agent, there would be no end to the impositions practised upon the Court. The Court expects, in proper cases, something more than the mere formal test *287affidavit of an agent, who may swear truly, and yet, from his want of knowledge, be the diipe of (vanning and fraud. It is not meant to assert that any such imputations belong to the pres-mt case. This irregularity,’ like the former, probably passed in silence; and it would •be highly injurious if an objection of this sort should now prevail, when all parties have hitherto acquiesced in its immateriality.

We are now led to the principal question in this cause; viz. what rate of salvage is to be allowed to-, the re-captors ? This depends upon trie true construction of the salvage act of congress of 3<1 ojf March, 1800, ch. 14. That act provides, that, upon the re-capture of any ves-. sel; (other than a vessel of war or privateer,) or of any goods belonging to any persons resident within or under the proteóíion of the United ' States, the same, if re-captured bj aprivate vessel of the U. States, shall be restored on payment of onesixth part of tile value of the vessel or goods ; and if the vessel, so re-captured, shall appear to have been set forth and armed as a vessel of war, before such capture, or afterwards, then upon a salvage of one half of the true value oftsuch vessel of waiy

. It is argued, in behalf of the re-captors, that the Ade* line being an armed vessel, they are entitled to a moiety-of the value of *the cargo*as well as of the vessel; either ■ upon an equitable construction of the statute, or upon general principles, as a case not within the purview of the statute.

We are all, however, of a different opinion. The statute is expressed in clear and unambiguous terms. Ft does not give the salvage 'of one. sixth part of the value upon goods, *the cargo*of an unarmed vessel; but it gives it upon *any goods*re-captured, -without any reference ter the vehicle or vessel in which they are found. We cannot interpose a limitation or qualification upon the terms which the legislature has. not itself imposed; and if there be ground for higher salvage in cases of armetfavessels, either upon public policy or principle, such considerations must be addressed with effect to another tribuna!'. This decision affirms the decree of the Circuit Court as to the claims of all the parties domiciled in’ the United States.

*288As to. the claims of the parties domiciled in France# whether natives or Americans; or other foreigners, their rights depend altogether upon the law of Prance as to *re-captures;*for by fhe act of congress, as well as by the general law, in. cases of re-capture, the rule of reciprocity is to be applied. If France would restore :n' a like case, then are we bound to *restoi-e;*if otherwise, then the whole proper ty must becondemned to the re-caprors. It appears that by the law of France in cases of ré-capture, after the property has been 34 hours in possession of the enemy, the whole property is adjudged good prize to the re-captors, *s\*hether it belonged to her subjects, to her allies, or to neutrals. We are hound, therefore, "in this case, to apply the same rule; and as the property in .this case was re-captured after it had been inpossession of the enemy more than 34 hours, it must, so far as iibelonged to persons domiciled in France, be condemned to the captors; and.the decree of the Circuit Court as to them must be. affirmed.

As to the claims of the other persons whose national character and proprietary interest do not distinctly appear, considering ail the circumstances," we shall direct farther'proof to be. made on both points. As, indeed, the master has not been able to swear directly to the proprietary interest of the cargo, but simply says that the goods were, as he presumes and believes, the property of the shippers or the consignees, perhaps, in strictness, farther proof might have been required in the Courts below as to the whole cargo, it .was not, however, moved for there by the captors ; and as we are satisfied in relation to the claims which \ve shall, restore, it would be useless npw to make such a general order.

. Upon these principles, the property embraced in ¿he-claims by a'nd in behalf of Alexis.' Gardere, of William Weaver and Isaac Levis, jointly, and of William Weaver alone. • of Andrew Byeriy, of George I. llr«wn and "William Hollins, of Peter Á. Karthqus, of William Bay-, ard, Harman Leroy, James M‘Eve.rs and Isaac Iselm, of William Hood, of Tlieophilus De'-Cost, of John Dubany, of Messrs, John B. Fónssaít & Co. of Edward Smith, James Wood and Samuel W. Jon< s, of Victor Ardaiib n» of Lewjs Chastant, of Lewis Labat, of Benjamin Rieló of Nath’h Richards, Nay ah Taylor and Gustaviis Upson, of *289Ferdinand Hurxthal j must be. restored on payment of the salvage of one sixth part of the value. The property embraced in the claims on behalf of Peter Boue, junr. of R. Henry, of P. Donssaulf, of William Johnsion and James Dowling, of G. Brousse, must be condemned to the .captors.

The remaining claims must stand for farther proof. And as to the property unclaimed, it must be condemned as good and lawful prize to the captors.

The decree of the Circuit Court is to he reformed so as to be in conformity with this decision.